The 5th US Circuit Court of Appeals issued an order Wednesday effectively allowing the mandate to be enforced in about half the states in the country.
The issue is likely to eventually be taken up by the Supreme Court.
The vaccine policy in question was rolled out by the US Department of Health and Human Services’ Centers for Medicare & Medicaid Services, which sought to require the Covid-19 vaccine for health care workers at certain providers that participate in Medicare and Medicaid.
Two other major Biden vaccine policies — one dealing with federal contractors and another aimed at companies with 100 or more employees — have also been halted by courts.
In its order Wednesday, the 5th Circuit hinted at the likelihood that the Supreme Court will ultimately have to resolve the legality of the health care worker mandate, calling it an “issue of great significance currently being litigated throughout the country.”
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“Its ultimate resolution will benefit from ‘the airing of competing view’ in our sister circuits,” the 5th Circuit said in its order, which was issued by a panel made up of two Democratic appointees and one Republican appointee.
The mandate had previously been frozen nationwide by federal judge in Louisiana, whose order followed the move by a federal judge in Missouri that blocked the mandate in 10 states. On Monday, the 5th Circuit — faced with a request by the Justice Department to reinstate the mandate — said that the hold on the mandate will remain in place in the 14 states that brought the challenge in Louisiana.
However, the appeals court cast doubt on the rationale for freezing the policy nationwide.
The 5th Circuit order did not disturb the separate move by the Missouri judge to block the mandate in the 10 states in the challenge to the requirement that was brought in Missouri. That order was recently left in place by the 8th US Circuit Court of Appeals. A third appeals court has signaled that it believes the mandate to be lawful.
The states where the CMS mandate is currently on hold, under the orders of the 5th and 8th Circuit, are: Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky, Ohio, Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota and New Hampshire.